By John M. Simpson, Duane Morris Law
On January 8, 2024, the U.S. Court of Appeals for the Eighth Circuit rejected a constitutional challenge brought by the Animal Legal Defense Fund, People for the Ethical Treatment of Animals (PETA) and other groups to an Iowa statute that prohibits “agricultural facility fraud.” Animal Legal Defense Fund v. Reynolds, No. 22-1830 (8th Cir. Jan. 8, 2024). Statutes like this are often termed “ag gag laws” by their opponents. The district court had declared that the law violates the First Amendment, but the court of appeals reversed.
The law at issue, Iowa Code § 717A.3B(1)(a)-(b), was enacted in response to a prior law that the Eighth Circuit had determined had certain constitutional shortcomings. (We reported on that case here.) Under the revised statute, unlawful “agricultural facility fraud” arises in two instances. First, the trespass provision is violated when a person uses deception to gain access to an agricultural production facility “with the intent to cause physical or economic harm or other injury” to the facility’s operations, animals, crops, owner, personnel, equipment, buildings, premises, business interests or customers. Second, the employment provision is violated when a person uses deception to gain employment at such an agricultural production facility with intent to cause the same type of harm to the same type of victims or targets as the trespass provision.
From a farmer’s viewpoint, such a law is necessary to keep animal rights activists from trespassing onto farms or lying about who they are to get employed in order to expose what the activists claim are bad animal welfare conditions. Such activist intrusions sometimes result in theft of animals (or, as activists describe it, “rescues”) and run the risk of compromising biosecurity by bringing pathogens into areas where animals are kept. On the other hand, the activists claim that such a law violates their right to free speech. In this case, they claimed that the Iowa law was unconstitutional because it was a content-based restriction on speech that could not survive strict scrutiny. The Eighth Circuit disagreed.
According to the court, while false or deceptive speech is not per se unprotected, a state nevertheless may constitutionally prohibit intentionally false speech undertaken to accomplish legally cognizable harm. The Iowa law is constitutional because it focuses on the intent to inflict a cognizable harm, not on the content of what is being said. As the court explained, both the trespass and employment provisions of the law
permissibly forbid[] false statements that result in legally cognizable harm. The law’s reference to the content of speech (false statements) is constitutional because “the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” … [T]he supplemental intent requirement does not distinguish among speakers based on their viewpoints. If a person uses deception to gain employment with intent to harm a facility, the offender would be liable for deceptively praising the facility (“I love the work you do, and I want to support it!”) or deceptively criticizing the facility (“This facility is poorly managed, and I will help increase profits.”). The statute does not prefer laudatory lies over critical falsehoods. [Slip op. at 7 (citations omitted).]
Nor was the court persuaded by cases from other circuits that had found other similar laws invalid:
We are not persuaded by these decisions that the Iowa statute is unconstitutional. The intent element determines whether particular conduct violates the statute, but it does not mean that a violation turns on the viewpoint of an offender’s deceptive speech. Rather, the intent requirement permissibly reflects “the general view that criminal punishment should be reserved for those who intend the harm they commit.” … The statute filters out trespassers who are relatively innocuous, and focuses the criminal law on conduct that inflicts greater harm on victims and society. In our view, the Iowa statute is not a viewpoint-based restriction on speech, but rather a permissible restriction on intentionally false speech undertaken to accomplish a legally cognizable harm. [Slip op. at 9 (citation omitted).]
This is an important decision for the agricultural community, and in particular, farmers in Iowa. Pork producers and their farms have often been the targets of animal rights groups. According to the U.S. Department of Agriculture’s National Agricultural Statistics Service, as of September 1, 2023, of the approximately 74.3 million head of hogs and pigs in the United States, 24.4 million of them were in Iowa, which is the largest pork-producing state in the U.S.
